(concurring) : Richard Holden died leaving an indebtedness for the balance due on purchase money for land and no personal property applicable to his debts. Prior to his death he had divided this land, the sole property he had, among his three children, one of whom is the defendant, and conveyed it to them by deed. Thejury find that Richard Holden at the time of these conveyances by him did not retain sufficient property to pay his debts and available for that purpose and that the defendant received one-tliird of the land in value. The deeds on their face express that they are made in consideration of natural *197love and affection and it is admitted tbat there was no valuable consideration.
Harris brought an action on the bond for the purchase money against the executor of Richard Holden and obtained judgment for the amount due with a decree that the one-third of the land conveyed by Richard Holden to the plaintiff should be subject to payment of the debts because it was a voluntary deed and'void as to creditors. The plaintiff paid off said judgment and his brother has repaid him one-third and this is a proceeding to subject that third of the land which is in possession of the defendant to the repayment of the other third.
The jury find as a fact that when Richard Holden conveyed this third of the land to the defendant it was expressly charged wdth the duty of paying its one-third of the Harris debt. This should be conclusive. But if. we put that entirely on one side, this would still be so by operation of law without any agreement, on two grounds:
First. It is alleged in the complaint and is submitted in the answer that the indebtedness to Hands was secured by the conveyance of the land to a trustee to pay the purchase money and afterwards to convey to Richard Holden. The trustee having died a decree whs made in an action brought by Richard Holden against the widow and heirs-at-law of the trustee for a conveyance to Richard Holden but the creditor Harris was not a party to that proceeding and was unaffected by it. His Honor also correctly instructed the jury that the trust in favor of the creditor was not abandoned. His taking a new note for the balance due and unpaid on the purchase money, in the absence of evidence to show such an intention, was not an abandonment of the security. Hyman v. Devereux, 63 N. C., 624. One part of the trust property having paid the debt, this part which passed without any consideration to the-defendant is charge*198able to contribute its pro rata. Adams Eq., 570; Stanly v. Stocks, 16 N. C., 318.
Secondly. The conveyances to the three children, being entirely voluntary, were void as to creditors, since property sufficient and available to pay his debts was not retained by the father. Each share so conveyed is liable for its proportionate part of the debt, and as the plaintiff’s share has by decree of a court been subjected to the payment of the whole debt, he is clearly entitled to be reimbursed by a decree subjecting the one-third of the land conveyed to the defendants to an order of sale for the repayment of the one-third of the debt for which the defendant’s share was chargeable and which plaintiff has been heretofore' forced to pay under the orders of the Court. This would be so if the defendant had been a devisee. Badger v. Daniel, 79 N. C., 372, 382; Green v. Green, 69 N. C., 25; 4 Am. and Eng. Enc., 11; Taylor v. Taylor, 48 Am. Dec., 400; Schermerhorn v. Barhydt, 9 Paige, 28; Clowes v. Dickerson, 5 Johns., Ch. 235. And she is in no better position as one of the grantees of the father under a deed void as to creditors. This view renders the exceptions taken immaterial, and if there was error, as to which it is unnecessary to intimate any opinion, such error was harmless.
Affirmed.